counsel for amicus curiae electronic frontier foundation · almost one month after the surveillance...
TRANSCRIPT
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United States v. Vargas, Case No. 13-CR-06025-EFS AMICUS BRIEF OF ELECTRONIC FRONTIER FOUNDATION
ROBERT M. SEINES (WSBA No. 16046) Attorney at Law P.O. Box 313 Liberty Lake, WA 99019 Phone: 509-844-3723 Fax: 509-255-6003 Email: [email protected] Hanni M. Fakhoury (admitted pro hac vice) Jennifer Lynch (CA SBN 240701) ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: 415-436-9333 Fax: 415-436-9993 Email: [email protected] Counsel for Amicus Curiae ELECTRONIC FRONTIER FOUNDATION
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA,
Plaintiff,
v. LEONEL MICHEL VARGAS, Defendant.
Case No.: 13-cr-06025-EFS BRIEF AMICUS CURIAE OF ELECTRONIC FRONTIER FOUNDATION IN SUPPORT OF DEFENDANTS’ MOTION TO SUPPRESS POLE CAMERA EVIDENCE Hearing Date: February 11, 2014 Time: 10:00 a.m. Location: Richland Courthouse
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TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 1 II. ARGUMENT ......................................................................................................... 2
A. The Front Yard, Driveway and Front Door Were Constitutionally Protected “Curtilage.” .................................................................................. 3
B. Because Vargas Could Reasonably Expect that He Would Not Be Subjected to Invasive, Around the Clock Monitoring, the Month Long Video Surveillance Violated His Reasonable Expectation of Privacy ........ 4
1. Due to the Extremely Intrusive Nature of Secret Video
Recording, Warrantless Use of Such a Camera Violates a Person’s Reasonable Expectation of Privacy .................................... 4
2. Even if the Curtilage of Vargas’ Home Was Exposed to the
Public, He Did Not Actually Expose His Home to Constant Video Surveillance ............................................................................ 7
C. Using a Video Camera to Record Activities at the Curtilage of Vargas’
Home Constitutes a Warrantless Trespass and Violates the Fourth Amendment ................................................................................................ 12
D. Failure to Obtain a Warrant Meeting the Koyomejian Standard Means
the Evidence Seized Under the Search Warrant Must Be Suppressed ...... 14 III. CONCLUSION .................................................................................................... 15
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TABLE OF AUTHORITIES
Federal Cases
Bond v. United States, 529 U.S. 334 (2000) ................................................................................................. 5 Brown v. Illinois, 422 U.S. 590 (1975) ............................................................................................... 15 California v. Ciraolo, 476 U.S. 207 (1986) ..................................................................................... 5, 11, 12 Dow Chemical Co. v. United States, 476 U.S. 227 (1986) ................................................................................................. 5 Florida v. Jardines, 133 S. Ct. 1409 (2013) ....................................................................................... 3, 13 Florida v. Riley, 488 U.S. 445 (1989) ..................................................................................... 5, 10, 11 Katz v. United States, 389 U.S. 347 (1967) ........................................................................................ passim Kyllo v. United States, 533 U.S. 27 (2001) ......................................................................................... 1, 2, 13 Oliver v. United States, 466 U.S. 170 (1984) ......................................................................................... 2, 3, 8 Payton v. New York, 445 U.S. 573 (1980) ................................................................................................. 2 Richards v. County of Los Angeles, 775 F. Supp. 2d 1176 (C.D. Cal. 2011) .................................................................... 7 Shafer v. City of Boulder, 896 F. Supp. 2d 915 (D. Nev. 2012) .................................................................. 7, 12
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Silverman v. United States, 365 U.S. 505 (1961) ............................................................................................... 13 Trujillo v. City of Ontario, 428 F. Supp. 2d 1094 (C.D. Cal. 2006) ................................................................ 6, 7 United States v. Anderson-Bagshaw, 509 Fed. Appx. 396 (6th Cir. 2012) ....................................................................... 12 United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986) ................................................................................... 15 United States v. Crawford, 372 F.3d 1048 (9th Cir. 2004) (en banc) ................................................................ 15 United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) ...................................................................... 11, 12, 15 United States v. Dunn, 480 U.S. 294 (1987) ................................................................................................. 3 United States v. Duran-Orozco, 192 F.3d 1277 (9th Cir. 1999) ................................................................................ 15 United States v. Falls, 34 F.3d 674 (8th Cir. 1994) .................................................................................... 15 United States v. Gonzalez, 328 F.3d 543 (9th Cir. 2003) .................................................................................... 6 United States v. Jones, 132 S. Ct. 945 (2012) ...................................................................................... passim United States v. Knotts, 460 U.S. 276 (1983) ................................................................................................. 9 United States v. Koyomejian, 970 F.2d 536 (9th Cir. 1992) (en banc) ............................................................ 14, 15
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United States v. Lopez, 895 F. Supp. 2d 592 (D. Del. 2012) ......................................................................... 9 United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones, 132 S. Ct. 945 (2012) .............................. 6, 8 United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) .................................................................................. 8 United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990) .............................................................................. 15 United States v. Nerber, 222 F.3d 597 (9th Cir. 2000) .............................................................................. 4, 12 United States v. Perea-Rey, 680 F.3d 1179 (9th Cir. 2012) .............................................................................. 2, 3 United States v. Place, 462 U.S. 696 (1983) ................................................................................................. 5 United States v. Taketa, 923 F.2d 665 (9th Cir. 1991) ................................................................................ 6, 7 United States v. Torres, 751 F.2d 875 (7th Cir. 1984) .................................................................................. 15 United States v. Vankesteren, 553 F.3d 286 (4th Cir. 2009) .................................................................................... 8 United States v. Williams, 124 F.3d 411 (3d Cir. 1997) ................................................................................... 15
State Cases
Commonwealth v. Rousseau, 990 N.E.2d 543 (2013) ........................................................................................... 10
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People v. Weaver, 909 N.E.2d 1195 (2009) ......................................................................................... 10 State v. Campbell, 759 P.2d 1040 (1988) ............................................................................................. 10 State v. Earls, 70 A.3d 630 (2013) .................................................................................................. 9 State v. Jackson, 76 P.3d 217 (2003) ................................................................................................. 10 State v. Zahn, 812 N.W.2d 490 (S.D. 2012) ................................................................................... 9
Federal Statutes
18 U.S.C. § 2518 .............................................................................................................. 14
Constitutional Provisions
U.S. Const. amend. IV ............................................................................................... passim
Other Authorities Gary Fields and John R. Emshwiller, Many Failed Efforts to Count Nation’s Federal
Criminal Laws, The Wall Street Journal, July 23, 2011 .......................................... 2
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United States v. Vargas, Case No. 13-CR-06025-EFS AMICUS BRIEF OF ELECTRONIC FRONTIER FOUNDATION Page 1
INTRODUCTION1
The government’s warrantless use of a pole camera to monitor defendant Leonel
Vargas’ home for one month, requires this Court to confront the “power of technology to
shrink the realm of guaranteed privacy.” Kyllo v. United States, 533 U.S. 27, 34 (2001).
In April 2013, police officers installed a camera on top of a pole near Vargas’
house at 531 Arousa Road in Pasco, Washington. Complaint at ¶ 7. The camera was
aimed at the front yard and driveway of his house, where it could see the front door and
allowed officers to remotely watch the house from the police station. Id. at ¶ 7, 11. For
almost a month, agents monitored Vargas’ home around-the-clock, waiting to catch him
in criminal activity. When officers finally saw Vargas firing weapons outside his home
almost one month after the surveillance began, the camera allowed officers to zoom in
close enough to determine the color and type of weapon he was carrying. Id. at ¶¶ 11,
18. The camera ultimately permitted the officers to obtain a search warrant for Vargas’
home, which resulted in the seizure of the gun and drugs that form the basis of the
charges against Vargas. Id. at ¶¶ 20-22.
But the Fourth Amendment demanded that the officers obtained a search warrant
before monitoring Vargas’ home for a month. Any other rule would allow the police free
reign to silently watch and record those they dislike, waiting for someone to inevitably
1 Counsel for amicus curiae thanks the Court for allowing EFF to appear as an amicus
and would be eager to participate in oral argument during the pretrial conference on
February 11, 2014, if permitted by the Court. No one, except for undersigned counsel, has authored the brief in whole or in part, or contributed money towards the preparation
of this brief.
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United States v. Vargas, Case No. 13-CR-06025-EFS AMICUS BRIEF OF ELECTRONIC FRONTIER FOUNDATION Page 2
commit one of the myriad federal crimes.2 Thus, this Court must suppress both the video
evidence and the fruits of the illegal surveillance.
ARGUMENT
The Fourth Amendment protects people in their “persons, houses, papers, and
effects,” from “unreasonable” searches and seizures. U.S. Const. amend. IV. A “search”
occurs “when the government violates a subjective expectation of privacy that society
recognizes as reasonable.” Kyllo, 533 U.S. at 33 (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring)). A “search” also occurs when the government
“physically occupie[s] private property for the purpose of obtaining information.”
United States v. Jones, 132 S. Ct. 945, 949 (2012). Warrantless searches inside the home
are “presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). That
extends to warrantless searches of a home’s curtilage, which is considered part of the
house. United States v. Perea-Rey, 680 F.3d 1179, 1184 (9th Cir. 2012) (citing Oliver v.
United States, 466 U.S. 170, 180 (1984)).
The warrantless installation and use of the pole camera to record all activities in
the front of Mr. Vargas’s house continously for almost a month was a warrantless
“search” under the Fourth Amendment, and thus unreasonable. Mr. Vargas had a
reasonable expectation of privacy to be free from continuous video monitoring. Further,
the installation of the pole camera allowed officers to effectively trespass into the
curtilage of Vargas’ home for the purpose of obtaining information about him. The fruit
of that illegal search—the search warrant and the evidence obtained during its
2 See Gary Fields and John R. Emshwiller, Many Failed Efforts to Count Nation’s
Federal Criminal Laws, The Wall Street Journal, July 23, 2011, http://online.wsj.com/news/articles/SB1000142405270230431980457638960107972892
0 (estimating 3,000 federal crimes).
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execution—must be suppressed.
A. The Front Yard, Driveway and Front Door Were Constitutionally Protected “Curtilage.”
At the outset, it is important to note the camera was aimed at and recorded activity
occurring in the constitutionally protected “curtilage” of Vargas’ home. The Supreme
Court recently explained that the “front porch is the classic exemplar of an area adjacent
to the home and ‘to which the activity of home life extends,’” and thus qualifies as
“curtilage” protected under the Fourth Amendment. Florida v. Jardines, 133 S. Ct. 1409,
1415 (2013) (quoting Oliver, 466 U.S. at 182, n. 12); see also Perea-Rey, 680 F.3d at
1184-85 (carport attached to the front of the home qualified as “curtilage”). To
determine whether an area surrounding a home meets the definition of curtilage, courts
look to four factors: “the proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding the home, the nature of the
uses to which the area is put, and the steps taken by the resident to protect the area from
observation by people passing by.” United States v. Dunn, 480 U.S. 294, 301 (1987).
The area recorded by the video camera in this case clearly meets these four
factors. The pole camera provided officers with a view of an area very close to Vargas’
home, including “the front yard and driveway area” and the “front door of the
residence.” Complaint at ¶ 7. Moreover, the area was included in an enclosure
surrounding the house because it was physically connected to the house itself. The front
driveway and front door of the house, where the resident of the home meets and greets
guests and enters and exits the home, are areas “to which the activity of home life
extends.” Jardines, 133 S. Ct. at 1415. Finally, although Mr. Vargas did not have a fence
surrounding his front yard, the house was in such an isolated area that it was reasonable
for him to expect that not many people passing by would observe it or enter onto his
property.
Since the area recorded clearly was the “curtilage” of Vargas’ home, it was
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subject to Fourth Amendment protection.
B. Because Vargas Could Reasonably Expect that He Would Not Be Subjected to Invasive, Around the Clock Monitoring, the Month Long Video Surveillance Violated His Reasonable Expectation of Privacy.
1. Due to the Extremely Intrusive Nature of Secret Video Recording, Warrantless Use of Such a Camera Violates a Person’s Reasonable Expectation of Privacy.
Secretly video recording an individual in his home is one of the most invasive
forms of electronic surveillance possible. With video surveillance, officers can capture
the details of a person’s life, whether big or small, in high definition. They can enhance
their senses by cataloging details that could be easily forgotten. They can silently rewind
and rewatch over and over again without being detected. These concerns are amplified
when it comes to video surveillance of a person’s home, even if the footage captures the
curtilage, rather than the interior of the home.
The Ninth Circuit has made clear “the legitimacy of a citizen’s expectation of
privacy in a particular place may be affected by the nature of the intrusion that occurs.”
United States v. Nerber, 222 F.3d 597, 601 (9th Cir. 2000). This comes from Katz itself,
which found a person had a reasonable expectation of privacy in a phone call placed
from a public phone booth. Because the “Fourth Amendment protects people, not
places[,]” what a person “seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected.” Katz, 389 U.S. at 351. Even though the booth
was accessible to the public and could be observed from the street, the intrusiveness of
eavesdropping on an otherwise private conversation meant the Fourth Amendment
applied.
Since Katz, the Supreme Court has repeatedly looked at the intrusiveness of the
government’s action when assessing whether an expectation of privacy is reasonable.
See generally Nerber, 222 F.3d at 600-03 (citing United States v. Place, 462 U.S. 696,
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707 (1983) and Bond v. United States, 529 U.S. 334, 337 (2000)). Supreme Court
decisions approving warrantless surveillance by airplane confirms this.
In California v. Ciraolo, 476 U.S. 207 (1986), officers flew a plane 1000 feet
above the defendant’s home, observing and taking pictures of marijuana being grown in
the backyard. 476 U.S. at 209. The Supreme Court ruled that anyone flying over the area
could have seen what the officers observed, and therefore the officers’ actions did not
violate the Fourth Amendment. Id. at 213-14. However, the Court recognized that aerial
observation “of curtilage may become invasive, either due to physical intrusiveness or
through modern technology which discloses to the senses those intimate associations,
objects or activities otherwise imperceptible to police or fellow citizens.” Id. at 215.
Similarly, in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), while the Court
ultimately approved the warrantless surveillance of an industrial complex because the
photographs did not capture “intimate details,” the Court cautioned that “surveillance of
private property by using highly sophisticated surveillance equipment not generally
available to the public, such as satellite technology, might be constitutionally proscribed
absent a warrant.” Id. at 238; see also Florida v. Riley, 488 U.S. 445, 452 (1989)
(plurality opinion) (upholding warrantless visual surveillance of greenhouse by
helicopter since “no intimate details connected with the use of the home or curtilage
were observed”).
Prolonged and pervasive video monitoring of the front door and front yard of the
home exponentially increases the intrusiveness of the government’s action because it
records intimate details connected with the use of the home and curtilage, including
“associations, objects or activities otherwise imperceptible to police or fellow citizens.”
Ciraolo, 476 U.S. at 215, n.3. It permits the government to know who visits and
associates with the homeowner, when that person comes and goes from their home, and
the routes they take. The invasiveness is further amplified when video surveillance is
continuous. “Prolonged surveillance reveals types of information not revealed by short-
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term surveillance, such as what a person does repeatedly, what he does not do, and what
he does ensemble.” United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010), aff’d
sub nom. United States v. Jones, 132 S. Ct. 945 (2012).
Courts have consistently expressed concerns about the government’s unsupervised
use of covert video surveillance. The Ninth Circuit has specifically noted there is “a
stronger claim to a reasonable expectation of privacy from video surveillance than
against a manual search.” United States v. Gonzalez, 328 F.3d 543, 548 (9th Cir. 2003).
Because of its intrusiveness, the Ninth Circuit has permitted defendants to raise Fourth
Amendment challenges to video surveillance that may be foreclosed to other, less
invasive surveillance techniques.
For example, in United States v. Taketa, 923 F.2d 665 (9th Cir. 1991) agents
broke into a DEA agent’s office to physically search and install a secret video camera to
investigate criminal activity. 923 F.2d at 668-69. The surveillance captured the activities
of both the occupant of the office and a co-worker. Id. at 677. The Ninth Circuit held
that although the co-worker did not have standing to challenge the physical search of the
office, he did have standing to challenge the video surveillance since he had a reasonable
expectation of privacy against being videotaped in the office. Id. at 676-77. The court
noted “[p]ersons may create temporary zones of privacy within which they may not
reasonably be videotaped, however, even when that zone is a place they do not own or
normally control, and in which they might not be able reasonably to challenge a search
at some other time or by some other means.” Id. at 677.
In Trujillo v. City of Ontario, 428 F. Supp. 2d 1094 (C.D. Cal. 2006), police
officers sued the city and department for violating the Fourth Amendment when they
discovered a covert video camera was installed in the officers’ locker room. 428 F. Supp.
2d at 1097. The defendants argued the officers had a diminished expectation of privacy
in the locker room because the room was accessible to visitors and other employees, and
the camera only recorded public areas, and not any restrooms or shower stalls. Id. at
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1099, 1104. But the district court disagreed, ruling the officers had an expectation of
privacy even if they knew there were others in the locker room because the video
surveillance “distinguishe[d] this search from an average visual search and [wa]s far
more intrusive than a search of someone’s property.” Id. at 1107 (citing Taketa, 923 F.2d
at 677); see also Richards v. County of Los Angeles, 775 F. Supp. 2d 1176, 1184-86
(C.D. Cal. 2011) (surreptitious video recording of a “dispatch” room shared by public
employees violated Fourth Amendment).
Similar to what occurred here, in Shafer v. City of Boulder, 896 F. Supp. 2d 915
(D. Nev. 2012), the district court found a Fourth Amendment violation when the
government provided a private citizen with video equipment that the citizen installed to
allow the police to look into his neighbor’s backyard. Id. at 928. The court found the
surveillance, which lasted for 56 days, intruded upon the neighbor’s expectation of
privacy in part because of the “intensity of the surveillance[,]” noting that the camera
was “long range” and “contained superior video recording capabilities than a video
camera purchased from a department store.” Id. at 932.
These cases make clear that the invasiveness of secret video surveillance means
the continuous recording of the constitutionally protected curtilage of a person’s home
without a search warrant violates the Fourth Amendment.
2. Even if the Curtilage of Vargas’ Home Was Exposed to the Public, He Did Not Actually Expose His Home to Constant Video Surveillance.
No person expects that the front of his home will be exposed to video-recorded
police surveillance all day, every day for more than a month. The government’s primary
argument in its opposition to Vargas’ motion to suppress is that there is no expectation
of privacy to be free from video recordings that only capture “activities that could
otherwise be seen by the naked eye from any passerby.” Government’s Response to
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Defendant’s Motion Suppress, ECF No. 48 (“Gov. Response”) at 2.3 According to the
government, regardless of whether Vargas was in the curtilage of his home or not, when
Vargas “conducted target practice near a road where [he] could easily be observed, [he]
exposed [his] activities to the public.” Gov. Response at 4.
But in determining whether something is “exposed” to the public, the Court must
“ask not what another person can physically and may lawfully do but rather what a
reasonable person expects another might actually do.” Maynard, 615 F.3d at 559. Stated
differently, whether something is exposed to the public “depends not upon the
theoretical possibility, but upon the actual likelihood, of discovery by a stranger.” Id. at
560. This approach to the Fourth Amendment is consistent with the Supreme Court’s
recent decision in Jones concerning GPS tracking.
While the majority opinion in Jones held that the installation of a GPS device onto
a car was a trespass onto private property, 132 S. Ct. at 954, Justices Alito and
Sotomayor’s concurring opinions—constituting five members of the Court—
demonstrated that a majority of the Justices were concerned with the capabilities of
3 The government also cites two cases, United States v. Vankesteren, 553 F.3d 286 (4th
Cir. 2009) and Oliver, 466 U.S. at 170, to suggest the pole camera only recorded activity occurring in “open fields,” an area that is not protected by the Fourth Amendment. See
Gov. Response at 2; Oliver, 466 U.S. at 179. But as explained above, the camera was
clearly pointed at and recorded activities occurring in the curtilage of Vargas’ home, and
thus the open fields cases do not apply here. See Vankesteren, 533 F.3d at 290
(“…camera was not placed within or even near the curtilage of his home.”); see also
United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (no Fourth Amendment violation when officers used video camera without a warrant to capture defendants growing
marijuana on government park land open to the public).
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technology to cheaply and efficiently aggregate reams of data to create new and
unknown intrusions into previously private places. See id. at 954-57 (Sotomayor, J.,
concurring) and 957-64 (Alito, J., concurring in the judgment). Although a person
exposes small details of their public movements and may have no reasonable expectation
of privacy in those movements, see United States v. Knotts, 460 U.S. 276, 281 (1983),
aggregating those movements through technologies that can reveal much more than
discrete pieces of information raises different Fourth Amendment concerns. See Jones,
132 S. Ct. at 956 (Sotomayor, J., concurring) (technology advances that make “available
at a relatively low cost such a substantial quantum of intimate information about any
person” to the Government “may alter the relationship between citizen and government
in a way that is inimical to democratic society.”) (citations and quotations omitted).
Both concurring opinions in Jones doubted that people reasonable expect that
their public movements could be aggregated and monitored for an extensive period of
time. Justice Sotomayor’s opinion questioned “whether people reasonably expect that
their movements will be recorded and aggregated in a manner that enables the
Government to ascertain . . . their political and religious beliefs, sexual habits, and so
on.” Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring); see also id. at 964 (Alito, J.,
concurring) (noting that “society’s expectation has been that law enforcement agents and
others would not . . . secretly monitor and catalogue every single movement of an
individual’s car for a very long period”).
Since Jones, numerous courts have relied on these concurring opinions to find that
prolonged surveillance of a person’s public movements is a “search” under Katz because
a reasonable person does not actually expect that the totality of their movements will be
revealed over an extended period of time. See, e.g., State v. Zahn, 812 N.W.2d 490, 496
(S.D. 2012); United States v. Lopez, 895 F. Supp. 2d 592, 602 (D. Del. 2012); see also
State v. Earls, 70 A.3d 630, 642 (2013) (relying on concurring opinions in Jones to find
prolonged location monitoring through cell site data a “search” under state constitution);
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Commonwealth v. Rousseau, 990 N.E.2d 543, 553 (2013) (relying on Jones concurring
opinions to find prolonged GPS surveillance a “search” under state constitution).4
This Court should reach the same conclusion with respect to video surveillance.
Just as a person would not expect their public movements to be tracked continuously for
a month and thus does not actually “expose” these movements to others, no member of
the public actually expects that their home would be subject to continuous, around-the-
clock video surveillance through the use of a pole camera and thus does not “expose” the
full mosaic of activities that occur there to others. While Vargas may have expected
passersby to casually glance at the front of his home for brief fleeting moments, he could
not have expected someone to use a video camera to record all activities occurring
outside his home continuously for more than a month. The Supreme Court has already
explained that with aerial observation of a person’s home, what matters is the actual, not
theoretical, likelihood of being watched by the government.
In Florida v. Riley, a plurality of the Supreme Court found that visual surveillance
without a search warrant by a helicopter flying 400 feet above a greenhouse did not
violate the Fourth Amendment. 488 U.S. at 445-46. The plurality opinion noted that any
member of the public could have flown over the property and observed the greenhouse,
particularly because nothing suggested the helicopter was flying outside of FAA
regulations. Id. at 450-51. But in a concurring opinion that provided the crucial fifth vote
upholding the surveillance, Justice O’Connor explained that just because a helicopter
“could conceivably observe the curtilage at virtually any altitude or angle” did not
4 Even before Jones, a number of state courts found GPS surveillance to be a “search”
under their state constitutions for that same reason. See, e.g., People v. Weaver, 909 N.E.2d 1195 (2009); State v. Campbell, 759 P.2d 1040 (1988); State v. Jackson, 76 P.3d
217 (2003).
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necessarily mean there was no expectation of privacy from observation. Id. at 454
(O’Connor, J., concurring). Instead, “consistent with Katz, we must ask whether the
helicopter was in the public airways at an altitude at which members of the public travel
with sufficient regularity that Riley’s expectation of privacy from aerial observation”
was unreasonable. Id. (citing Katz, 389 U.S. at 361). Thus, it was not “conclusive that
police helicopters may often fly at 400 feet” because “if the public rarely, if ever, travels
overhead at such altitudes, the observation cannot be said to be from a vantage point
generally used by the public” and therefore the area would not be exposed to the public.
Riley, 488 U.S. at 454. She noted that there was no evidence that suggested helicopters
do not routinely fly at that altitude, and thus the surveillance was permissible. Id. at 455.
Conversely, a person does not expect the front of their home to be exposed to the
police all day, every day for more than a month. For that reason, the Fifth Circuit ruled
in United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987) that the use of a pole
camera to record activities occurring in the defendant’s front yard was a “search” under
the Fourth Amendment. Id. at 251. It distinguished Ciraolo by noting “unlike in Ciraolo,
the government’s intrusion is not minimal” and was not “a one-time overhead flight or a
glance over the fence by a passer-by.” Id. It found Ciraolo did not authorize “any type of
surveillance whatever just because one type of minimally-intrusive aerial observation is
possible.” Id. Instead, the court looked to expectations of society and found that
continuous video surveillance of a person’s backyard conducted by a pole camera
“provokes an immediate negative visceral reaction,” “raises the spectre of the Orwellian
state” and, most importantly, violates the Fourth Amendment if not authorized
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beforehand by a search warrant. Id. at 248, 251, 252.5 The district court reached the
same result in Shafer, finding there is a reasonable expectation of privacy from “constant
video surveillance” which permits an officer “to turn on his television and watch
everything going on” in someone’s home, a far cry from the situation in Ciraolo. Shafer,
896 F. Supp. 2d at 931-32 (citing Nerber, 222 F.3d at 603-04 and Cuevas-Sanchez, 821
F.2d at 251).6
While Vargas may have exposed discrete bits of his activities to the public, he did
not actually “expose” his home to continuous video surveillance. He had a reasonable
expectation of privacy that was violated by the prolonged video surveillance of his
home. C. Using a Video Camera to Record Activities at the Curtilage of Vargas’
Home Constitutes a Warrantless Trespass and Violates the Fourth Amendment.
The Supreme Court recently explained that Katz’s reasonable expectation of
privacy test “has been added to, not substituted for, the common-law trespassory test.”
Jones, 132 S. Ct. at 952 (emphasis in original). Because the camera allowed the officers
5 As explained in more detail below, the Fifth Circuit and other courts, including the
Ninth Circuit, require more than just a simple search warrant to authorize covert video
surveillance. 6 Even though the Sixth Circuit in an unpublished opinion ultimately found no Fourth
Amendment violation in the use of a pole camera installed without a search warrant to
look at the defendant’s house, it expressed “misgivings” about allowing the government
to conduct long-term video surveillance. United States v. Anderson-Bagshaw, 509 Fed.
Appx. 396, 405 (6th Cir. 2012). It noted that Ciraolo involved “a brief flyover, not an
extended period of constant and covert surveillance” and observed that the five members of the Supreme Court who signed onto concurring opinions in Jones shared “our
concerns about certain types of long-term warrantless surveillance.” Id.
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to enter the protected curtilage of Mr. Vargas’s home in order to obtain information
about him, the surveillance was a trespass under the Fourth Amendment.
Under the Supreme Court’s renewed focus on trespass, an officer’s ability to
obtain information is restricted “when he steps off [public] thoroughfares and enters the
Fourth Amendment’s protected areas.” Jardines, 133 S. Ct. at 1415. The focus is not on
technical trespass but whether there is “actual intrusion into a constitutionally protected
area.” Silverman v. United States, 365 U.S. 505, 512 (1961). Thus, although the officers
did not physically enter Vargas’ property, the video camera effectively allowed the
officers to do so, meaning the officers conducted a “search” under the Fourth
Amendment.
Jardines is illustrative. Without a search warrant, officers entered the defendant’s
front porch and permitted a drug-detecting dog to smell the defendant’s home. Jardines,
133 S. Ct. at 1413. In finding the officers had “searched” the curtilage and thus the home
under the Fourth Amendment, the Supreme Court noted that when agents intrude onto a
“constitutionally protected extension” of a home, the “only question is whether [the
homeowner] had given his leave (even implicitly) for them to do so.” Id. at 1415. It
noted the officers had no license, either explicit or implicit. Id. at 1415-16. While most
homeowners may permit a Girl Scout or trick-or-treater to enter a person’s front porch,
there was no “customary invitation” to permit a police dog to enter the front of the home
and smell for drugs. Id. at 1416.
The same is true here. While the video camera was not physically installed on
Vargas’ property, “obtaining by sense-enhancing technology any information regarding
the interior of the home that could not otherwise have been obtained without physical
‘intrusion into a constitutionally protected area,’ constitutes a search” at least when the
technology is “not in general public use.” Kyllo, 533 U.S. at 34 (quoting Silverman, 365
U.S. at 512). Thus, the camera effectively entered Vargas’ home for the purpose of
obtaining information. As in Jardines, while a homeowner may have an understanding
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that his home may be visually observed by passersby for brief moments, a homeowner
would never invite someone to monitor their house all day, every day for more than a
month, whether remotely by camera or by physically standing on the property.
By using a video camera to intrude onto Vargas’ home for the purpose of
obtaining information, then, the officers “searched” the curtilage under the Fourth
Amendment.
D. Failure to Obtain a Warrant Meeting the Koyomejian Standard Means the Evidence Seized Under the Search Warrant Must Be Suppressed.
Since the video surveillance was a “search” under both the expectation of privacy
and trespass tests of the Fourth Amendment, police needed to obtain judicial
authorization before installing and using the video camera But given how intrusive video
surveillance is, the Ninth Circuit and other federal circuit courts have required police do
more than obtain a mere search warrant. See United States v. Koyomejian, 970 F.2d 536,
542 (9th Cir. 1992) (en banc). Instead, police must make an additional showing,
borrowed from the requirements of the Wiretap Act and specifically 18 U.S.C. § 2518,
before they are permitted to engage in covert video surveillance. Those requirements
are:
• the judge must find that normal investigative techniques have been tried and failed or are unlikely to succeed or too dangerous;
• the warrant must contain a particular description of the activity to be recorded and a statement of the specific crime of which it relates;
• the warrant cannot permit surveillance longer than necessary to achieve the objective of the investigation up to 30 days, though the government can ask for extensions; and
• the warrant must require the surveillance be conducted in a way that minimizes videotaping of activity that should not be surveilled.
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Koyomejian, 970 F.2d at 542 (quoting Cuevas-Sanchez, 821 F.2d at 252).7 Since the
officers engaged in a “search” of Vargas’ home by using a secret video camera, they had
to obtain a warrant that satisfied the Koyomejian requirements before recording. By
recording without any warrant whatsoever, the officers violated the Fourth Amendment.
Evidence obtained as the result of “illegal action of the police is ‘fruit of the
poisonous tree’” and must be suppressed. United States v. Crawford, 372 F.3d 1048,
1054 (9th Cir. 2004) (en banc) (quoting Brown v. Illinois, 422 U.S. 590, 599 (1975)).
That extends to evidence seized pursuant to a warrant that was a “fruit” of the original
illegal search. See United States v. Duran-Orozco, 192 F.3d 1277, 1281 (9th Cir. 1999).
Here, the video surveillance was clearly the basis for the search warrant to search
Vargas’ home, as demonstrated by the fact the agents observed Vargas’ home for close
to a month and did not apply for a search warrant until after they saw him on video with
the weapons. As the search of Vargas’ home was clearly a fruit of the illegal video
surveillance, the evidence seized as a result of the search warrant must be suppressed.
CONCLUSION
For the reasons stated above, this Court should find the video surveillance violated
the Fourth Amendment. The fruits of that illegal surveillance – the search warrant and
the evidence seized from Vargas’ residence – must be suppressed as a result. Dated: December 2, 2013 Respectfully submitted,
/s/ Robert M. Seines ROBERT M. SEINES Attorney at Law P.O. Box 313
7 See also United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997); United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994); United States v. Mesa-Rincon, 911 F.2d 1433, 1437 (10th Cir. 1990); United States v. Biasucci, 786 F.2d 504, 510 (2d Cir. 1986); United States v. Torres, 751 F.2d 875, 883-84 (7th Cir. 1984).
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Liberty Lake, WA 99019 Phone: 509-844-3723 Fax: 509-255-6003 Email: [email protected] /s/ Hanni M. Fakhoury Hanni M. Fakhoury Jennifer Lynch ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Phone: 415-436-9333 Fax: 415-436-9993 Email: [email protected] Counsel for Amicus Curiae ELECTRONIC FRONTIER FOUNDATION
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the Court
for the Eastern District of Washington by using the appellate CM/ECF system on
December 2, 2013. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
Dated: December 2, 2013 Respectfully submitted, /s/ Robert M. Seines ROBERT M. SEINES
Counsel for Amicus Curiae
ELECTRONIC FRONTIER FOUNDATION
Case 2:13-cr-06025-EFS Document 59 Filed 12/02/13